OGH: Capability of a legal successor of a gambling website to be sued

May 27, 2022 Benn-Ibler Rechtsanwälte

In the present case, the Austrian Supreme Court (Oberster Gerichtshof, OGH) addressed the scope of a contract succession by the operator of a gambling website.

The plaintiff concluded a framework agreement and various gambling contracts with the operator of a gambling website. After a change of operator to the defendant, a company with a Maltese online gambling licence, the plaintiff suffered a loss of approximately EUR 45,000. The plaintiff was aware of the change to the defendant and agreed to it. The plaintiff now sought repayment under the title of enrichment, as he had placed the bets in the course of an unauthorised and thus invalid contract. The defendant countered that there was no capability of being sued for the losses before the change to the new operator and that the Austrian gambling monopoly violated Union law.

While the court of first instance granted the claim in full, the Court of Appeal set aside the first judgment and only awarded repayment of the amounts after the exchange. The OGH saw the case in the same way as the court of first instance:

The assumption that losses incurred before the exchange could only be compensated for by means of a standard such as Section 38 of the Austrian Commercial Code (Unternehmensgesetzbuch, UGB) or Section 1409 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), or a corresponding foreign standard was wrong. Legal consequences of a void contract are also governed by the consumer statute according to Article 6 Rome I Regulation in the case of a cross-border reference. According to Austrian law, a succession of a contract is a uniform legal transaction by which the totality of all mutual rights and obligations is transferred and the party taking over the contract takes the place of the party withdrawing from the obligation. Since the scope of the succession is determined by the agreement of the parties, the OGH assumed that - due to the services via the website - the unity theory (Einheitstheorie) also applies to the contractual rights of formation and thus also to the claims of condition based on Sec. 877 ABGB.

Ultimately, the OGH also pronounced that the Austrian gambling monopoly now complies with all requirements of the European Court of Justice (ECJ) and is thus not relevant to the case.

OGH 3 Ob 44/22z (24.03.2022)